I have read the proposal on the Patent Policy in part due to 1) time
constraints 2) the wording of the text is clearly intended for those
familiar with the U.S. legal system and otherwise with a high IQ. For
the general public, even those such as myself with Bachelors degrees in
Computer Science, the proposal is very large mouthful.
Firstly let me say that this proposal does have it's merits. The very
fact that you do recognise the potential impact that business patents
have on developing standards is good news, and that you intend to have
WG Members acknowledge potential patents of their own in working on
standards is a good move.
There are, however, a number of problems with both the proposal and idea
that you seek comments on.
Before I go into this matter further, you should be aware that the
method used to gain comments on this proposal were holy inadequate. This
is a far-reaching proposal that anyone can see warrants a great deal of
user though and comment. You announced this proposal as part of any
other W3C announcements on your www.w3.org homepage and it was gone
within days; only links to the proposal would have given any idea that
the proposal even existed; the public ultimately views such methodology
as "underhand" and "deliberately quietened." FAQs produced do not go far
enough to assist people in understanding this matter, the W3C should
have made this proposal announcment visible at the top of it's homepage
throughout the commenting period and announced it to relevant community
sites, whether you believed susbstancial intelligence responses were
likely to come out of it or not.
The proposal itself sets many alarm bells sounding. The fact that it
isn't clear how this affects existing standards is enough to warrant
fear in the community. The first question is likely that of "Can HTML be
patented?" The answer is not clear to me but by guess I would say no.
Of far less certainty is that of SVG, which is of course troublesome.
But as I do not have knowledge of that matter, I will no no further.
Significantly, the proposal acts to leverage commercial potential in web
standards. It will permit Members to invisage commercial attractiveness
and to seek potential financial rewards from participation in creating a
W3C standard. This goes against the W3C's core values of creating
standards that everyone can both implement and adhere to.
If a standard is published, then extended (as has been done many times
in the past) it is already shrouded in problems. With this proposal, the
matter of extension becomes something more commercial. For example, if a
standard were to be issued under RAND licensing terms, would extensions
of the standard be prohibited except by Members of the WG? This is not
clear, but it is obvious that patent-holding Members would seek to
prohibit use of the standard such that they maintain a hold on their
patent-earning contribution.
The very fact that Members come together to form a standard should not
be something that Members can think about in commercial gain. If that
was to become the case, a Member may easily bend a standard towards
using it's own patents, and this may not be immediately seen by the
community or indeed other Members.
The legality of RAND licensing is of course untested, and as we know
from painful historical cases, loopholes and undesired effects can be
found in almost all legal terms that an organisation wealthy enough to
participate in a WG will undoubtably work to capitalise upon.
Should the W3C permit RAND licensing, as reportedly already been the
case, a serious rift will emerge between those wanting a truely open
organisation working solely to develop and encourage adoption of
community standards, and the W3C. Whether the W3C actually permits RAND
licensing that makes it difficult, if not impossible, for open source
software to implement a standard or not, the perception is still there,
and as a body that has to market adoption of clear standards (not
something the W3C is known for) this perception would be a major
ball-and-chain.
Standards that have RAND clauses may also inhibit the work of the W3C.
For example, should a simple and yet very powerful standard be
development under RAND licensing which uses a technology that is
encumbered by a far-reaching patent, development of the standard into
future versions would undoubtedly be restricted if not by the Member
holding the patent (and therefore interested in maintaining it's
patented technology in the standard) but by the W3C not wanting to go
down a path potentially expecting a costly lawsuit.
If, as has been the case before, an open source organisation or
individual were to produce an RAND-licensed implementation without
seeking a license from the patent holder(s) simply because they are
incapable of paying the royality fee, doesn't this make a mockery of the
RAND terms itself? Certainly, violations of such standards licensing are
inevitable because the W3C must be seen as promoting a free web, such
violations would put the W3C organisation and it's Members under much
public scrutiny, as would a company leveraging it's commercial might
against a public community.
Also, if a new standard was placed under RAND licensing terms, what
woudl the effect be on ideas for other standards that require
technologies which contain parts similar to, if not identical to, the
RAND-licensed standard? Should the two be separated such that one is
under an RF license, but implementation of it requires implementation of
the RAND-licensed standard, which would almost certainly restrict
implementations of the RF-licensed standard.
All in all, this policy opens the door for huge ramifications and
commercial gain a the expense not only of the public, but the W3C
itself. If a standard is intended for adoption by implementors and
promoted by the W3C it should automatically be placed under a
non-restricted RF license without question.
I would therefore urge that the W3C reject this patent policy and indeed
follow a suggested given by the Mozilla.org response that at the time of
forming of a new standard proposal, all Members of the WG be forced to
waive any royality rights that any patents they may hold could be used
in implementation or use of the standard.
Regards,
James Green